ON REHEARING.
Mr. Chief Justice Bearddelivered the opinion of the Court.
In this case there has been presented to the court a petition for rehearing, in which we are urged to reverse the decree giving the proceeds of the insurance policy in question to the complainant. The counsel for the petitioner misapprehends the basis of the court’s former *414opinion, in that he assumes the court treated the present suit as in the nature of a bill of interpleader, and put the defendant in the attitude of asking active interposition of the court, when by an agreement between himself and the complainant he was already in possession of the fund. This assumption would not have been made if counsel.had had before him at the time he prepared his petition the opinion delivered by the court. In that opinion, in a mere historic way, it was stated that the insurance company had paid over the proceeds of the policy to the defendant administrator- upon an agreement between him and the complainant that this was to be Avithout prejudice to the rights of the latter. No point Avas made upon this, nor did the respective attitudes of the two parties to this suit, or the fact that the proceeds of this policy were in the possession of the administrator of A. E. Justice, enter into the consideration and determination of the questions that were involved. Where the funds were at the time of the institution was regarded and treated as an immaterial fact.
It is also said that there is nothing in the opinion of the court of chancery appeals that warranted the conclusion announced by this court that the husband’s contingent right in the policy was given to her. There was nothing else that he could give.' The policy was delivered to her after its issuance, and immediately upon its receipt by the husband, with the intention that she should keep it alive, and that it should belong to her. The finding of that court, in language that cannot be *415misunderstood, was that this policy was assigned by parol to Mrs. Justice, and upon this there was nothing-left open for this court to determine, except the question. of law, and that is whether the parol assignment of this chose in action would carry the right of the assignor to the assignee. In the third place, it is insisted that the effect of the finding of the court of chancery appeals is that the husband was insane at the time he committed the homicide upon his wife. No pretense was made in pleading, nor, so far as we can ascertain from the opinion of the court of chancery appeals in the evidence, that Justice was irresponsible at the time he perpetrated this crime. That court does find that he was desperate, but, as we understand from the use of the word, the inference that the court intended to be drawn was that finding that his wife had determined to separate herself forever from him, and withdraw her person and her estate from his protection, that he was thrown into a furious condition of mind. Evidently it was not an inference drawn from the evidence in the case that he was insane at the time of this murder.
In the original opinion it was said that it was unnecessary to consider the constitutional question raised by the administrator of Justice, for the reason that as, under our application of the common-law rule' of jure mariti, the title to the policy never vested in the surviving husband, and, therefore, there was nothing for him to forfeit. It is said, however, that this conclusion could not have been reached by the court, except by hold*416ing the constitutional provision in question of no effect or as inapplicable. As above indicated, we did hold it as inapplicable, and we still maintain that view. But it is insisted that such a holding violates the spirit of section 12 of article 1 of the constitution, inasmuch as its effect is to work a forfeiture of the right to take property by devolution under the law, because of the crime committed by the husband. We do not think that such is the effect of our holding, when we simply de-. dined to give the surviving husband the benefit of this common-law rule where his own ’ criminal offense has called it into being.
The provision in question is that “no conviction shall work corruption of blood or forfeiture of estate.” This provision has no connection whatever with the devolution of property, but it is intended in its last clause to prevent a forfeiture of an estate of a criminal, on account of his offense; but we held that, under the facts found in this record, the surviving husband never acquired an estate in this property, and therefore there was nothing upon which this constitutional provision could operate. The same answer may be made to that part of the petition which calls the attention of the court to sections 9,10, art. 1, of the federal constitution.
Again, it is said that the right of the surviving husband to take the chose in action of the. predeceased wife rests, not upon the common law, but upon the statute of 29 Charles II, chapter 3, section 25, which, as we understand- the petition, it is insisted is still in force in this *417State. This question, however, was put at rest in the case of State v. Miller, 11 Lea, 620. In that case it was said that all prior statutes, whether English, or statutes passed in this State, or brought into it from North Carolina, were in effect repealed by the Code of 1858. • It is conceded that the effect of section 41 of the Code was to repeal all statutes of this State and of North Carolina theretofore in operation in Tennessee, but it said that this repeal was confined alone to those statutes. It certainly would be an anomalous condition, if all domestic statutes were extinguished by the adoption of the Code of 1858 and antiquated foreign statutes were left in operation in this State. We do not think the revisers of the Code, or the legislature in adopting it, intended that such a condition should exist; and, whether dictum or not, we are entirely satisfied with the conclusion announced by the court just referred to.
Nor do we think that the result of the opinion complained of, in incapacitating the surviving' husband to take this chose in action because of the homicide, is to escheat the property to the State. Because, unquestionably, if the administrator of Justice is not permitted to take the title of the property, it became vested in the administrator of Mrs. Justice upon her death, and from him passes to the distributees of her estate. Nor is there inequity in this. . She paid every premium on this policy from the time it was' taken out up to her death. She was put in possession of it,with the statement *418made by her husband that it was taken out for her, and was her property, to be kept alive by her with her own money, and she died with it under her dominion. We think that every legal and equitable consideration tend to support the claim of her administrator, and that, as a matter of right, as well as of sound public policy, the proceeds should pass to those of her blood who stood in closest relationship with her at the time of her death, to wit, her children, rather than to the representatives of one whose claim rests alone upon his felonious act, and from him to aliens in blood to Mrs. Justice. The petition is dismissed.